In follow-up to this post, we are happy to report that Dr. Sisley is still fighting the good fight: on Monday, Petitioners filed a Petition for Panel Rehearing or Rehearing En Banc. Although it’s not uncommon for these to get filed, few and far in between are granted (filing such a petition to rehash the same arguments is considered an abuse of the privilege). However, this specific Petition is one to consider – the Petition writes “the Opinion directly conflicts with multiple Supreme Court decisions; authoritative decisions this Court and every other circuit; and fundamental APA norms.” And of course, beyond that, the reasoning behind the Panel’s Opinion “presents issues of exceptional societal and jurisprudential importance”:

“Substantively, Petitioners asked this Court to reexamine a key misinterpretation of the CSA’s text that fuels the divide between federal and state medical marijuana laws. But don’t be fooled. This case isn’t just about pot. It is about fundamental administrative law questions with weighty separation of powers implications: When is judicial review of final agency action available? Who may obtain it? And which branch says what the law is? In his statement in Standing Akimbo, LLC v. United States, 141 S. Ct. 2236 (2021), Justice Thomas lamented the untenable chasm between state and federal marijuana laws and the ‘half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana.’ This case illustrates, unfortunately, that judicial mistakes on these fundamental questions shoulder blame.”

On to the legal arguments. The key argument made in the Petition is that the Panel had violated the Supreme Court’s holding in Darby v. Cisneros, 509 U.S. 137 (1993), which provides that Section 704 of the Administrative Procedure Act “has limited the availability of the doctrine of exhaustion of administrative remedies “to that which the statute or rule clearly mandates.” Here, no statute nor the DEA regulation clearly mandates exhaustion. In effect, the Panel’s ruling creates an exhaustion requirement – which is in direct contradiction to Darby’s holding.

Sisley also argues that the Panel’s Opinion implicitly limits who can seek review here, again contrary to the express terms of the law. The Panel had ruled only the party who files the petition under Section 811 can obtain judicial review of any resulting final DEA decision. This was the principal reason on which the Panel dismissed the action. But that’s in direct contradiction to what Fifth Circuit case law establishes: that a “parties-only” view of Section 877 is incorrect and that limiting judicial review to those “who participated in the agency proceeding” is inconsistent with the Supreme Court’s “more expansive interpretation of similar language” in the judicial-review provisions of numerous federal statutes, including the APA.

As compelling as it is, we expect this petition to be fully briefed and will follow along for the ride. Here’s hoping a more sensible outcome awaits.